Federal Court Nixes Fees for Federal Access to Information

A recent decision of the Federal Court of Canada has overturned settled expectations around fees for access to information at the federal level. The case arose after the Information Commissioner of Canada asked the Federal Court to rule on the longstanding practice of federal agencies and departments to charge fees relating to the disclosure of electronic records. For those not familiar with the federal scheme, there is a small application fee for an access to information request of $5.00. This doesn’t sound like much (although advocates argue that there should be no fee at all). However, the application fee is far from the whole story. Regulations passed under the Access to Information Act allow agencies and departments to charge additional fees for the costs of reproducing materials in various formats, for producing records in alternative formats, and fees for search and preparation. The search and preparation fee can be charged to offset the costs of searching and preparing records that are “non-computerized”. According to the regulations, the first 5 hours of search and preparation are free; after that the regulations provide for a fee of $2.50 per person per quarter hour for time spent preparing “non-computerized” records. For records produced from “a machine readable record”, there are no search and preparation fees. Instead, requesters can be charged $16.50 per minute for the cost of the processor and other devices used in the retrieval, and $5 per person per quarter hour for any time required to programme a computer to search for the information that is sought. Essentially, then, there are (potentially very high) search and preparation fees for non-computerized records and no search and preparation fees for “machine-readable” records.

At the heart of this case was the issue of what constituted a “non-computerized” record. The long-standing practice (supported by the previous Information Commissioner) was to treat records electronic formats such as MS Word, for example, as “non-computerized records” which would be subject to the search and preparation fees. The category of “machine-readable” records was reserved for records which did not exist at the time of the request, but that had to be created, for example by searching a database for relevant responses to a query.

The particular case at the heart of this reference was a request made by an individual for 3 sets of records from Human Resources and Skills Development Canada that included the table diagram for a database, system user manuals and guides for the database system, and the developer’s “Changelog” document relating to that database. All documents existed in electronic format. HDRSC informed the applicant that it would charge search and preparation fees of $4,180 for access to these documents. The applicant complained to the Commissioner about the estimate of 423 hours of search and preparation time which lay behind the fee, essentially seeking a reduction of the estimate. The Commissioner instead took the position that the search and preparation fees were not permitted by the regulations since the documents were “machine-readable records”.

It seems rather extraordinary to argue, as the Attorney General did in this case, that electronic records were not “machine-readable records”, but were instead “non-computerized records” within the meaning of the regulations. Justice Harrington acknowledged the bizarreness of the position, quoting the famous exchange between Alice and Humpty Dumpty (from Alice in Wonderland) as to the meaning of words. Humpty Dumpty’s conclusion, of course, is that what a word means will depend on who has the ultimate control. In this case, it was Justice Harrington who had the final say – and he ruled that documents in electronic format were “machine-readable records” and thus not subject to search and preparation fees. He concluded that “Whether stored in an internal hard drive, external hard drive or the now obsolete punch cards and floppy disks, such records are machine readable and therefore computerized.” (at para 54) The decision is a game changer, particularly in a context where so many government records are in some electronic format or another.

Of course, the decision must be situated in its particular context. Justice Harrington noted that the Access to Information Regulations are sorely out of date. This is no surprise – the entire regime is as out-of-date as a Compaq computer. The Information Commissioner only recently issued a report to Parliament calling for a massive overhaul of the Access to Information Act (see my post on this report here). The interpretation problems and the gap into which this case fell are most likely due to regulations that were drafted with the technology of the time in mind. Yet, as Justice Harrington notes, “Legislation is promulgated to the public. . . The language cannot be so obscure that one must glean through hundreds of statutes and thousands of regulations in order to arrive at its true meaning.” (at para 55) Although he expressed some sympathy for the many government agencies and departments that lack the funds to properly deal with access to information requests, he observed that “it is Parliament that placed these government institutions under the Act. If they are underfunded, they should not be looking to the courts for redress” (at para 62). Fees can be a real barrier to meaningful access to information in the hands of government, and although this case centres on the interpretation of the regulations, the bigger picture is of an Act and Regulations that are out of date and inconsistent with the federal government’s professed embrace of open government.

It remains to be seen what the upshot of this decision will be. While it is a victory of sorts for the Information Commissioner and for those Canadians who seek access to information in the hands of the federal government, it is a victory that turns on the wording of regulations and not on some broad principle of open access. The government could simply change the regulations to impose new fees – and perhaps even to raise existing fees that have not been touched since 1986. Of course, to do so without also tackling the myriad problems with the regime so clearly laid out in the Commissioner’s recent report would be to display a profound lack of commitment to meaningful access to information and open government.